Bill Cosby Case Highlights Fight To Define Rape

Associated Press

Bill Cosby performs in January at the Buell Theater in Denver. A federal judge will hear arguments on Cosbyís request to have dismissed a defamation lawsuit filed by three women accusing him of decades-old sex crimes.

Bill Cosby performs in January at the Buell Theater in Denver. A federal judge will hear arguments on Cosbyís request to have dismissed a defamation lawsuit filed by three women accusing him of decades-old sex crimes.

(Associated Press)

ALYSSA ROSENBERG

Bill Cosby's reputation takes another hit from revelations he drugged a woman to have sex with her

Bill Cosby's already-battered reputation took another hit Monday when The Associated Press reported that "Cosby testified in 2005 that he got Quaaludes with the intent of giving them to young women he wanted to have sex with, and he admitted giving the sedative to at least one woman and 'other people.'"

What I found most revealing about the AP's story was less that Cosby has acknowledged seeking drugs or having extramarital sex, and more the way his lawyers responded to the AP's reporting. "The AP had gone to court to compel the release of the documents; Cosby's lawyers had objected on the grounds that it would embarrass their client," wrote reporter MaryClaire Dale.

That language of embarrassment may be merely legalistic. If Cosby's legal team acknowledged that the behavior described in Cosby's testimony was criminal rather than merely humiliating or in contradiction with Cosby's public image, they could compromise their ability to defend him in other lawsuits. But there's a more unnerving possibility in that suggestion of embarrassment, one that's at the center of many of our most difficult conversations about sexual assault.

Maybe Bill Cosby truly believes that all the sex he's ever had was consensual. Maybe Bill Cosby believes that having taken drugs doesn't have any impact on a person's ability to consent. Maybe Bill Cosby and the women who have alleged that he assaulted and abused them have radical, even irreconcilable definitions of what it means to consent. Maybe Bill Cosby thinks that all he has to feel is embarrassment.

It might seem flabbergasting that we haven't achieved a clear national consensus about a definition of rape by now. But our disagreements are both written into law and the result of long-unresolved cultural expectations.

In 2012, then-Attorney General Eric Holder announced that, for the purposes of the Uniform Crime Report, which tracks crime nationwide, rape would be understood to be "The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim."

But in the District of Columbia, where Holder's office is, sex crimes are sorted into four degrees of sexual abuse, misdemeanor sexual abuse and statutory rape; the definition focuses less on the specific acts than the means a perpetrator uses against a victim to get them "to engage in or submit to sexual acts." California defines rape based on the circumstances in which sexual contact took place, and has separate statues that cover rape, the rape of a spouse and a variety of specific acts. The differences go on and on.

And the differences in attitudes that accompany these variations in the law create an even more complicated environment. In a study released last December, researchers Sarah R. Edwards, Kathryn A. Bradshaw and Verlin B. Hinsz wrote that "when survey items describe behaviors (i.e., 'Have you ever coerced somebody to intercourse by holding them down?') instead of simply label them (i.e., 'Have you ever raped somebody?'), more men will admit to sexually coercive behaviors in the past and more women will self-report past victimization. ... Given that rape is defined as intercourse by use of force or threat of force against a victim's wishes, this discrepancy suggests that at least some men who rape do not seem to classify their behaviors as such."

These differences in thinking can be amplified by other factors, Ron Sanchez, a psychologist who works with convicted rapists in the Utah State prison system, told PBS. "Many of the rapists have what we call thinking errors, or criminal thinking patterns where they have a tendency to distort reality," he suggested. "In other words, they might interpret interactions with individuals differently than the rest of us."

Jon Krakauer's "Missoula," his chronicle of a series of sexual assault cases at a University of Montana campus, is riddled with these sorts of disagreements about what counts as consent (as well as what counts as a sign that a woman is enjoying sex). Some of these disagreements may be strategic; saying you never heard someone say no to sex can be an important part of a criminal defense. But "Missoula" portrays a community where young women, members of the University of Montana football team, police and prosecutors have dramatically different understandings of what rape is. And the consequences of those disagreements go far beyond individual prosecutions.

It's always going to be exceptionally difficult to convince people to see themselves as rapists, just as it's extremely hard to get people to redefine themselves as racists. And we can't take a pause in prosecuting alleged rapists, covering them in the media or talking about sexual assault in order to convene some sort of national conversation, standardize our laws and get every single American to agree on what counts as rape.

But as tiresome and as unfair as it might seem, we have to keep pushing for consensus even as the campaign against sexual assault pushes forward on other fronts. If citizens — no matter how famous — legislatures and law enforcement officials can't agree on what rape is, then why should Bill Cosby feel like he's done anything wrong?

Alyssa Rosenberg writes for The Washington Post, where this first appeared.